Farrar v. Wolfe

• Decision Date: 10 May 1960
• Docket Number: No. 38650,38650
• Citation: 357 P.2d 1005
• Parties: Thelma FARRAR, Plaintiff in Error, v. Dr. Frank B. WOLFE, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1005

357 P.2d 1005

1960 OK 123

Thelma FARRAR, Plaintiff in Error, v. Dr. Frank B. WOLFE, Defendant in Error.

No. 38650.

Supreme Court of Oklahoma.

May 10, 1960.

Rehearing Denied and Dissenting Opinion Filed Dec. 6, 1960.

Application to File Second Petition for Rehearing Denied

Jan. 10, 1961.

Syllabus by the Court

1. There can be no recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence, against a physician for negligent aggravation of such injuries by improper treatment, after a settlement with full release ('Release of All Claims') of the tort-feasor who caused the injuries.

2. Record examined and held, that the judgment on the pleadings in favor of the defendant is not contrary to law.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Action for damages. Judgment for defendant on pleadings, and plaintiff appeals. Affirmed.

F. J. Lucas, Tulsa, for plaintiff in error.

Wheeler & Wheeler, Tulsa, for defendant in error.

JOHNSON, Justice.

This is an appeal from a judgment on the pleadings rendered by the District Court of Tulsa County, Oklahoma, in favor of the defendant, Dr. Frank B. Wolfe.

The record discloses that the plaintiff was a nurse, and that on or about May 6, 1957, while employed at the Osteopathic Hospital, she slipped on a slick floor and fell, from which fall she suffered a broken hip. She filed an action against the hospital for damages on the 26th day of September, 1957. A compromise and settlement of this action was made on May 6, 1958. Thereupon this action was dismissed with prejudice, and she executed a general release to the hospital for the damages that she suffered by reason of the fall on the floor of the hospital.

After the accident Dr. Frank B. Wolfe allegedly undertook to faithfully, skillfully and diligently treat and cure the fractured hip of the plaintiff; that Dr. Wolfe performed two operations upon the plaintiff which were unsuccessful. The plaintiff thereafter employed Dr. N. S. White and Dr. Worth Gross, and they re-operated on the plaintiff's hip at a cost of about $2,500 or more.

On July 8, 1958, Thelma Farrar filed an action in the District Court of Tulsa County, Oklahoma, against Dr. Frank B. Wolfe wherein she alleged damages suffered by her by reason of Dr. Wolfe's unprofessional and negligent treatment of her broken hip. That is, she sought damages against the doctor for his alleged negligent aggravation of her prior injuries (resulting from the fall on the hospital floor) by improper treatment.

Dr. Wolfe answered by general denial and plead the settlement of plaintiff's case against the Oklahoma Osteopathic Hospital and claimed the release executed by plaintiff in the case against the hospital as a bar to the action against him.

In plaintiff's reply she asserted that at the time she settled her case against the hospital she did not release the defendant, Dr. Wolfe, in the case against him.

A copy of the release was attached to Dr. Wolfe's answer and made a part of his pleading and reads as follows:

'Release of All Claims

'For and in Consideration of the payment to me at this time of the sum of Sixteen Thousand Nine Hundred Eighty Four and 50/100 Dollars ($16,984.50), the receipt of which is hereby acknowledged, I, being of lawful age, do hereby release, acquit and forever discharge Oklahoma Osteopathic Hospital of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about 31st day of May, 1957 at or near Second Floor, 744 West Ninth Street, Tulsa, Oklahoma.

'I hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.

'It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Oklahoma Osteopathic Hospital, by whom liability is expressly denied.

'This release contains the Entire Agreement between the parties hereto, and the terms of this release are contractual and not a mere recital.

'I further state that I have carefully read the foregoing release and know the contents thereof, and I sign the same as my own free act.

'Witness my hand and seal this 6 day of May, 1958.

'In presence of F. J. Lucas /s/ 603 Ritz Bldg.

'Caution! Read Before Signing

'x /s/ Thelma Farrar (Seal)

Thelma Farrar (Seal)'

This was the status of the pleadings upon which the trial court sustained the motion for judgment on the pleadings.

Plaintiff contends that under general principles of tort law the release of the Oklahoma Osteopathic Hospital in consideration of part payment of the amount claimed against the hospital does not bar this malpractice action against Dr. Wolfe, who allegedly was negligent in treating the injuries inflicted by the negligence of the hospital. On the other hand, the defendant, Dr. Wolfe, contends that since a person should not be twice compensated for the same injury and since plaintiff could have recovered compensation for damages resulting from the alleged malpractice in the action against the hospital, the release of the hospital and the satisfaction of all claims against the hospital constitutes a complete defense to plaintiff's subsequent action for malpractice against him.

The theory of the plaintiff comes within what text writers refer to as the 'minority rule or view,' Annotation 40 A.L.R.2d 1084, while the contention of the defendant is supported by the 'general rule,' 41 Am.Jur., Physicians and Surgeons, Sec. 137, page 252, or as referred to in Annotation 40 A.L.R.2d 1078, as the 'majority view.'

So far as we have been able to ascertain from the briefs filed in this case and by our independent research, this is a case of first impression in this jurisdiction; therefore, we must look to other jurisdictions for authorities determinative of the issues involved in the instant case.

The general rule as stated in 41 Am.Jur., Sec. 137, page 252, supra, reads as follows:

' § 137. Release of Tort-feasor as Bar to Action for Malpractice.--At common law, a settlement by an injured person with the original tort-feasor released the attending physician from liability for an aggravation of the original injury from malpractice. And it is the general rule that there can be no recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence,...